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Willful and Wanton, Res Ipsa, Informed Consent

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Willful and Wanton, Res Ipsa, Informed Consent WILLFUL AND WANTON, RES IPSA AND INFORMED CONSENT Bill Liebbe LAW OFFICE OF BILL LIEBBE, P.C. TYLER 223 South Bonner Avenue Tyler, Texas 75702 903-595-1240 telephone 903-595-1325 telecopier DALLAS 3811 Turtle Creek Boulevard Suite 1400 Dallas, Texas 75219 214-321-6100 [email protected] State Bar of Texas 17TH ANNUAL ADVANCED MEDICAL MALPRACTICE COURSE March 18-19, 2010 San Antonio WILLFUL AND WANTON, RES IPSA AND By choosing the words “standard of proof” INFORMED CONSENT rather than “standard of care,” the legislature intended, as it stated in Section 74.153, that a I. WILLFUL AND WANTON claimant “may prove” a departure from the standard of care in providing emergency medical Failure to opine that defendant acted care only if the plaintiff shows that the physician or “willfully and wantonly” in an emergency room healthcare provider “with willful and wanton case does not render the report inadequate. Bosch negligence” deviated from the standard of care. v. Wilbarger Gen. Hosp., 223 S.W.3d 460 (Tex. Thus, the legislature prescribed a claimant’s App.-Amarillo 2006, pet. denied); Benish v. burden of proof at trial in a case involving Grottie 281 S.W.3d 184 (Tex. App.-Fort Worth, emergency medical care. Benish at 193. 2009, pet. denied). Query: Is “willful and wanton negligence” Texas Civil Practice and Remedies Code an affirmative defense or plea in avoidance? Section 74.153 is titled “Standard of Proof in Section 74.151(a) provides that a person who in Cases Involving Emergency Medical Care.” The good faith administers emergency care...is not statutorily created standard of proof and the liable in civil damages for an act performed during applicable medical standards of care are not the the emergency unless the act is willfully and same. Bosch at 464 holding that “as used in the wantonly negligent. In Kinnear v. Texas Comm. on context of medical malpractice actions, the phrase Human Rights, 14 S.W.3d 299, 300 (Tex. 2000), “standard of care” and “standard of proof” are not the Texas Supreme Court confirmed that synonymous; a rejecting the argument that Section “immunity from liability, like other affirmative 74.153 requires an expert to speculate in his report defenses to liability, must be pleaded, or else it is as to whether a physician’s negligence was willful waived.” see also Texas Beef Cattle Co. v. Green and wanton. 921 S.W.2d 303 (Tex. 1996) holding that “an affirmative defense...is one of confession and The standard of proof imposed by Section avoidance...that does not seek to defend merely by 74.153 requires proof - that is, evidence at trial that denying plaintiff’s claims, but rather seeks to will more than likely be circumstantial - that the establish an independent reason why the plaintiff physician or healthcare provider’s mental state or should not recover. The committees comment to intent at the time of any deviation from the medical Texas Pattern Jury Charge Section 51.19 standard of care was willful and wanton. The acknowledges that “in the usual case, question [two Texas Supreme Court has explained repeatedly that or three involving willful or wanton negligence] it is a tortfeasor’s intent or mental state that will be pleaded and argued as an affirmative distinguishes between negligence, gross defense. negligence, knowing acts or omissions, willful negligence and intentional conduct. Benish at 191. II. RES IPSA LOQUITUR Given the limited discovery available prior Expert reports are required in res ipsa to the service of expert reports, it is doubtful that loquitur cases. In Garcia v. Marichalar, 198 an expert preparing a Section 74.351 report would S.W.3d 250 (Tex. App.-San Antonio 2006, no pet. ever be able to offer an opinion that a healthcare h.) holding that res ipsa loquitur is not a cause of provider acted with the requisite state of mind to action separate and apart from negligence, instead establish gross negligence or willful and wanton it is an evidentiary rule by which negligence may negligence. Benish at 192; Bosch at 464. be inferred by a jury. Even if the doctrine of res ipsa loquitur applies, the plaintiff would still be 1 required to file an expert report to prove causation. III. INFORMED CONSENT In Greenberg v. Gillen, 257 S.W.3d 281 (Tex. App.-Dallas, 2008, pet. dism’d.) Gillen based her healthcare liability claim on the lack of informed consent. Her expert’s report discussed the standard of care and breach of the standard of care regarding informed consent then stated: “If Ms. Gillen elected not to have the surgery, she would not have sustained the nerve injury. Therefore, Dr. Greenberg’s violation of the standard of care was a cause of Ms. Gillen’s injury.” In holding that the report was inadequate, the court noted that Dr. Stetson’s report merely stated the obvious facts that if Gillen had elected not to have the surgery, she would not have been injured. It failed to show how the alleged negligence in failing to obtain informed consent caused Gillen’s injury or damage. Specifically, the report did not discuss whether the alleged undisclosed information would have influenced a reasonable person in deciding whether to give or withhold consent. 2.
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